Kiran Raj

The Supreme Court of India Division Bench of Justice M. M. Sundresh and Justice Nongmeikapam Kotiswar Singh held that the service of notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, must be affected strictly through the modes prescribed within the statute. The Court directed that notices under this provision cannot be served via WhatsApp or any other mode of electronic communication. Stating the statutory framework, the Court reaffirmed that liberty is a fundamental right under Article 21 of the Constitution of India and that the manner of serving notice must safeguard this right. Consequently, the Court dismissed the application seeking modification of its earlier order, thereby confirming the binding directive that mandates personal service of such notices as per law.

The Court concluded that since a notice under Section 35 of the BNSS, 2023, is capable of resulting in arrest and affects personal liberty, it requires a procedural safeguard that excludes informal or electronic methods of service. Accordingly, it rejected the State’s argument that technological convenience or legislative permissiveness under other provisions justifies the electronic service of such notices.

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IA No. 63691 of 2025 was filed by the State of Haryana seeking modification of a previous order dated 21.01.2025, passed by the Supreme Court in MA No. 2034 of 2022 in MA No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021. The application aimed to allow the use of electronic communication, including WhatsApp, for serving notices under Section 35 of the BNSS, 2023.

Previously, the Supreme Court had directed all States and Union Territories to issue Standing Orders instructing their police machinery to serve notices under Section 41-A of the Code of Criminal Procedure, 1973, and under Section 35 of the BNSS, 2023, only in accordance with the modes prescribed by the statute.

The applicant, the State of Haryana, submitted that notice under Section 35 of the BNSS, 2023, merely informs a person to join an investigation and does not amount to arrest. The state argued that service through electronic modes would ensure that recipients cannot evade service, and would also preserve State resources.

Reliance was placed on Section 64(2) of the BNSS, 2023, specifically its proviso, to argue that the statute permits the service of summons via electronic communication. It was submitted that since the statute recognizes the electronic service of court-issued summons, a similar approach should apply to investigative notices under Section 35.

Further reliance was placed on Section 71 of the BNSS, 2023, which allows the service of summons on witnesses via electronic communication. The applicant contended that Section 71 does not require a court seal, and therefore provides greater flexibility for electronic service. It was argued that notice under Section 35 falls within a similar category as witness summons and should be treated similarly.

Section 530 of the BNSS, 2023, was cited to demonstrate the legislature's intent to incorporate technology in criminal proceedings. According to the applicant, the provision indicated an overarching intent to modernize procedure using electronic communication, and excluding investigative notices from such adaptation would defeat the legislative objective.

The applicant also contended that the precedents cited in earlier judgements—namely, Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT Delhi)—were based on the CrPC, 1973, which lacked provisions for electronic service. As the BNSS, 2023, explicitly provides for such service, the applicant argued that the previous guidelines should not apply.

On the contrary, the Amicus Curiae submitted that notices under Section 35 must be served in accordance with Chapter VI of the BNSS, 2023, which does not permit electronic communication as a valid method for such service. It was submitted that allowing WhatsApp or similar platforms would not align with statutory requirements.

The Amicus Curiae stated that the proviso to Section 64(2) only permits electronic service of summons when the summons bears a court seal. Since notices under Section 35 are not issued by courts, they cannot fall within this proviso. Additionally, it was argued that Section 530 of the BNSS, 2023, expressly excludes investigation from the scope of electronic proceedings, thereby affirming the need for traditional service methods.

The Amicus Curiae further stated that since non-compliance with a notice under Section 35 can result in arrest and deprivation of liberty, a higher standard of service must apply. Personal service is therefore necessary to preserve the individual’s right to liberty.

The Court recorded that "the Legislature has clearly demarcated the extent of permissible usage of modes of electronic communication, under the BNSS, 2023." It referred specifically to Section 530 of the BNSS, which states that all trials, inquiries, and proceedings under the Sanhita "may be held in electronic mode, by use of electronic communication or use of audio-video electronic means."

The Bench noted, "The issue before us lies within a narrow compass – whether the usage of electronic communication can also be extended to the procedure governing the service of a notice, contemplated under Section 35 of the BNSS, 2023."

While examining Section 35, the Court remarked that this provision lays out the procedure when the police may arrest a person without a warrant. It observed: "Section 35(3) of the BNSS, 2023 mandates the service of a notice whenever the Investigating Agency, on the basis of a reasonable complaint, credible information or suspicion, determines that a person may have committed a cognizable offence, but does not deem the arrest of such person necessary."

In discussing the procedural and substantive impact of the notice, the Bench stated: "Service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that protects this substantive right, as non-compliance with the notice can have a drastic effect on the liberty of an individual."

Further, the Court held: "The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35 of the BNSS, 2023 from the ambit of procedures permissible through electronic communication, that have been delineated under Section 530."

The Court rejected the argument equating investigative notices with summons issued by courts, stating: "A summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act."

Regarding Section 71, the Court clarified that it pertains to witness summons and not to notices with liberty implications. It recorded: "A notice under Section 35 of the BNSS, 2023 could have an immediate bearing on the liberty of the individual in case of its non-compliance, as laid down under Section 35(6)."

On statutory intent, the Bench held: "Introducing a procedure into Section 35 of the BNSS, 2023, that has not been specifically provided for by the Legislature, would be violative of its intent."

In its concluding directions, the Court stated: "IA No. 63691 of 2025 seeking modification of the order dated 21.01.2025, stands dismissed. As a consequence, order dated 21.01.2025, passed by this Court in MA No. 2034/2022 in MA No. 1849/2021 in SLP (Crl.) No. 1591/2021 stands confirmed." The Court confirmed that its earlier directions remained binding and unchanged.

The Bench reiterated: "Electronic communication is not a valid mode of service of notice under Section 35 of the BNSS, 2023, since its conscious omission is a clear manifestation of the legislative intent."

It further declared: "The restrictions imposed by the Legislature on the use of electronic communication, to only certain procedures, precludes the use of electronic communication for any other procedure, for which it has not been specifically permitted by the BNSS, 2023."

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Clarifying the broader implications, the Court recorded: "The essence of Article 21 of the Constitution imbues the BNSS, 2023, which reflects the laudable objective of safeguarding the liberty of an individual, while facilitating the investigation into and adjudication of offences."

Accordingly, the Court concluded: "The abovementioned restrictions on the usage of the mode of electronic communication, have been imposed in order to safeguard the right to life and personal liberty, guaranteed to an individual by the Constitution, from being impinged during the course of criminal investigation and proceedings."

Case Title: Satender Kumar Antil v. Central Bureau of Investigation and Anr.

Neutral Citation: 2025 INSC 909

Case Number: IA No. 63691 of 2025 in MA No. 2034 of 2022 in MA No. 1849 of 2021 in SLP (Crl.) No. 5191 of 2021

Bench: Justice M. M. Sundresh, Justice Nongmeikapam Kotiswar Singh